Health Care Antitrust – Even More Activity

Ten years ago, health care antitrust enforcement activity was markedly different than today’s landscape.  While the government has always focused its antitrust efforts on the health care industry, its approach, aggressiveness and rulemaking has significantly shifted.  The “bear” has been awakened.

On May 9, 2024, the Department of Justice (DOJ) announced the assembly of a new antitrust task force: the “Task Force on Health Care Monopolies and Collusion.”  This task force is chartered to focus on a multitude of issues such as payer/provider consolidation (mergers), “serial acquisitions,” billing and collection activities, and HIT services among others.  As you can see, the scope of the task force is much broader than the merger and acquisition activity traditionally associated with antitrust enforcement.  The formation of this task force is just one more signal of the changes to the government’s antitrust enforcement strategy and emphasis and is consistent with the “whole of government” approach set in motion by President Biden’s 2021 Executive Order “Promoting Competition in the American Economy.” 

Given what has transpired over the past year, it should come as no surprise that the government is pressing even harder into the health care industry.  Most notably, the “whole of government” approach has gone well beyond what is viewed as traditional antitrust enforcement in terms of reviewing and contesting mergers.  The creation and purposes of this task force is strong evidence that antitrust activity and enforcement in the health care industry is expanding to all types of behavior.  Antitrust in today’s world is more accurately described as “overall competition.”  Make no mistake, the government has gotten more aggressive (and successful) in health merger enforcement, but the scope of review has expanded, and will continue to expand, into other areas of the industry, such as workforce, supply chain and pricing. 

In addition to this new task force, the DOJ and Federal Trade Commission (FTC) have taken the following actions over the past year:

Non-Competes

The action garnering the most recent press has been the well-publicized FTC final rule prohibiting non-competes in employment arrangements, written about in detail here.  While that rule will not directly impact tax-exempt hospitals, the health care industry is filled with numerous other for-profit providers, who, if this rule is allowed to go into effect, will undoubtedly have their businesses impacted. 

Health Care Safety Zones

In early- and mid-2023, the FTC and DOJ revoked all of their longstanding health care antitrust policy statements a/k/a “safety zones.”  These safety zones provided detailed guidance on various antitrust related topics such as data sharing, joint ventures, and group purchasing, to name a few.  More importantly, they provided certainty.  With the revocation of these guidance documents, activities that previously would have satisfied a safety zone will be reviewed on a facts and circumstances basis, the same as any other activity.

Merger Guidelines

The agencies also proposed new merger guidelines in 2023.  The new guidelines are much more restrictive.  Merger enforcement activity has significantly increased, and the government has been much more successful in its challenge of transactions.  In many cases, transactions have been called off in the face of government review.  Likewise, cross-market mergers and other transactions that previously would likely have avoided government review are now squarely in the government’s crosshairs. 

Given that the government clearly is continuing down the path of greater and stricter health care antitrust or “competition” enforcement, it is important health care boards and executives (i) acknowledge the competition game has changed; (ii) educate themselves on all aspects of antitrust risk; and (iii) modify behaviors and business strategies accordingly.  Antitrust in today’s world is much more than merger and acquisition activity; its impacts are felt in every aspect of health care businesses.  Health care organizations should consider appropriate responses and planning throughout the entire organization, be it finance, audit, compliance, etc. in order to ensure the appropriate policies and processes are put into place that lessen any antitrust compliance risk.